Rosen v. Loew's, Inc., 263

• Decision Date: 23 July 1947
• Docket Number: Docket 20584.,No. 263,263
• Citation: 162 F.2d 785
• Parties: ROSEN v. LOEW'S, Inc.
• Court: U.S. Court of Appeals — Second Circuit

162 F.2d 785 (1947)

ROSEN v. LOEW'S, Inc.

No. 263, Docket 20584.

Circuit Court of Appeals, Second Circuit.

July 23, 1947.

Saul E. Rogers, of New York City (Sol Ringel and Milford Fenster, both of New York City, of counsel), for appellant.

Samuel D. Cohen and J. Robert Rubin, both of New York City, for appellee.

Before L. HAND, CHASE and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiff sues for the infringement of his copyright of a moving picture scenario, taken out as a "dramatic composition" — "The Mad Dog of Europe" — under § 11 of the Copyright Act.¹ Two questions arise: first, whether he abandoned the copyright; and, second, whether the defendant infringed it. The judge found against him upon both issues; but, as we agree with him upon the second, we shall not pass upon the first. The facts were as follows. A woman, named Root, wrote the scenario and dialogue for a moving picture play entitled, "The Mad Dog of Europe"; the theme being suggested to her by a man, named Mankiewicz. The picture was to show the rise of Hitler to power, and the devastation caused to a Jewish family through the spread of anti-Semitism. Root and Mankiewicz sold the play to the plaintiff on December 18, 1933, and on the 26th he deposited one copy in the Copyright Office and copyrighted it as a "dramatic composition," under § 11 of the Act, as a "work(s) not reproduced for sale." The plot turns upon the effect of anti-Semitism upon a love affair between a daughter of the Jewish family, Ilsa, and the son of a Gentile German family both living in the town of Gronau. The Jews — the Mendelsohns — have three sons and a daughter; they have been life-long friends of the Germans — who have two sons — Heinrich and Fritz. The children have been brought up together; and Heinrich is engaged to marry Ilsa. Later Heinrich becomes an ardent and prominent Nazi, and breaks his engagement to Ilsa, who then falls in love with Fritz and marries him. Fritz refuses to become a Nazi, and the Mendelsohns, including Ilsa and Fritz, are persecuted and threatened with imprisonment. Mendelsohn, the father, and one of the sons are killed by the Nazis, and Fritz and Ilsa realize that they must escape, or they will be taken prisoner. This they decide to do by walking across the border at night. Heinrich knows their plan; that the Nazis have got wind of it; and that they mean to send a patrol to arrest them. Heinrich, who has meanwhile become disgusted by the murders and other atrocities of the Nazis, warns Fritz and Ilsa before the Nazi patrol arrives, gives them his motor car, and delays the patrol long enough for them to make off, but only by himself standing in the path of shots, which the patrol fires at the escaping couple, and which kill him.

The defendant is the owner of a play, called "The Mortal Storm," which is produced as a motion picture in 1939, and which it founded upon a book of the same name, published by Phyllis Bottome, in 1938. The theme of both the book and the play also deals with a love affair between a Jewess and a Gentile in Germany; and the plot is in outline as follows. A Jewish family, named Roth, in a Bavarian town near the border, consists of the parents, three sons and a daughter, Freya. The father is an instructor in a university, and is a life-long friend of a German aristocrat named Marberg, who has, so far as appears, only one son, Fritz. Fritz and Freya are in love and become engaged at a birthday party, given for Roth. Fritz later becomes an ardent Nazi, and Freya breaks off the engagement and thereafter falls in love with another Gentile, Martin Breitner, whom she has known since childhood; for the Roths and the Breitners have been friends, like the Roths and the Marbergs. Martin is a young man of somewhat radical leanings; and, after Hitler comes to power, the Nazis persecute the Roths, Martin and Freya. They send Roth to a concentration camp, where he dies, although just before he does, Freya succeeds in persuading Fritz to let her mother see him. Martin has helped a suspect to cross the border but has come back to his mother's home; and he and Freya plan to escape and get married in Austria. The Gestapo has learned of this and sends a patrol to intercept them, putting Fritz in command. He asks to be excused, but after he is told that he must obey, there is absolutely nothing to indicate that he in any way delays or impedes the pursuit; indeed, it is he that gives the order to fire the bullets that kill Freya and wound Martin, just after the couple have crossed the border.

The Bottome book differs in a number of details from the defendant's play. Martin, sub nomine Hans, is a Communist, and has been forced to leave Germany after the Reichstag fire. After Freya breaks with Fritz, she and Hans become lovers and she becomes pregnant. The couple do not try to escape together; Hans tries alone. Fritz remains a confirmed Nazi, and is still in love with Freya. He personally shoots Hans after the two men under his command have missed.

The defendant took the depositions of three of the four persons who composed its play: Froeschel, Rameau and Franklin. The substance of Froeschel's testimony was this. He was an Austrian, a university graduate, who had been an officer in the Austrian Army during the first war, "an assistant judge in Vienna up to 1922," and always something of a novelist and writer. He entered the employ of the defendant in 1939, before which he had been employed by others in writing scenarios. He began on the play on April 20, 1939, and finished about a year later, making the Bottome book the basis, with a number of changes which his experience as a film writer told him were necessary. For example, the censor would not have allowed Freya to be pregnant of an illegitimate child; nor would it do to have the hero a Communist. He had worked with Franklin and Rameau, and a woman, named West, who died in April, 1943; and it was impossible for him to tell how much each severally contributed to...